Article I, Section 8: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”

Limits on the power of Congress to place conditions on funding:

For general welfare

Unambiguously stated

Cannot be unrelated to federal interest

Not barred by other constitutional provisions

Legislative Power:
The Commerce Power

Article I, Section 8 – The Commerce Clause: “To regulate commerce with foreign Nations, and among the several States, and with Indian Tribes.”

Post-New Deal exercise of commerce power –

1. Congress may regulate the use of the channels of interstate commerce

2. Congress may regulate and protect the instrumentalities of interstate commerce or persons and things in interstate commerce

Activity regulated must be economic activity or essential part of larger regulation of economic activity

Activity regulated must substantially affect interstate commerce

Legislative Power:
Commerce Clause Analysis

1. Is the entire class of regulated activity within Congress’ constitutional reach?

...A. Three categories of activity that can be regulated:

......1. The channels of interstate or foreign commerce.

......2. The instrumentalities of interstate commerce and persons or things in interstate commerce.

......3. Activities that have a substantial effect on interstate commerce.

.........Considerations:

.........1. Economic vs. noneconomic activity?

.........2. National vs. local—is this activity traditionally regulated by state governments?

.........3. Activity vs. inactivity.

2. Is the person/activity at issue a member of that class? (Whether the person’s own conduct or participation in the activity is, by itself, either too trivial or too local to have a substantial effect on interstate commerce is NOT an issue)

Legislative Power:
The Enforcement Clause (14th Amendment)

“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

Nationalist perspective: Congress can EXPAND the rights protected by the 14th amendment

Federalist perspective: Congress only has power to ENFORCE the rights protected by the 14th amendment

Analysis:

1. Congress must identify a history and pattern of unconstitutional discrimination by the states.

2. Congress’ remedial legislation must be congruent and proportional to the targeted violation.

Legislative Power:
10th and 11th Amendments

Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Federal government can override state sovereignty, but it must STATE SO PLAINLY so that congress knows what it is voting on and the political process can run its course in determining whether to override state sovereignty (i.e. lobbyists can get involved, etc.)

“Take title” provision was unconstitutional because it impermissibly “commandeered” state governments (legislature).

Congress cannot compel state governments to adopt laws or regulations.

Anti-commandeering doctrine extended to executive officers.

Eleventh Amendment: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

The immunity interpretation: the Eleventh Amendment is a constitutional limit on federal court subject matter jurisdiction over all suits against state governments. (Based on not what 11th amendment actually says, but what it presupposes)

The diversity interpretation: the Eleventh Amendment limits only diversity jurisdiction of federal courts; it leaves a state open to federal question suits by citizens and non-citizens alike. (Minority view)

Ways around the Eleventh Amendment: suits against state officers (ex parte young), waiver, congressional abrogation (if it has the power to do so, congress can abrogate under the supremacy clause but only in federal court).

11th Amendment Rules:

1. CANNOT sue state governments (or their agencies) in federal court.

State Trooper with excessive force – no suit with state or DOCCPS

2. CANNOT sue state officials in their official capacities for money damages to be paid out of state treasury.

State Trooper – cannot sue for damages

3. CAN sue state officials in their official capacities for prospective relief (e.g., injunctions) that requires state officials to comply with federal Constitution or laws, even if compliance will result in substantial state expenditures.

State Trooper – can sue for prospective relief (future relief)

4. CAN sue state officials in their individual capacities for money damages, even if state law requires that the officer be indemnified with funds from the state treasury.

State Trooper – as individual, he is personally liable and would pay out of pocket. Usually not deep pockets though, but moststates have passed indemnity laws.

Legislative Power:
The Negative Commerce Clause

Presumptions:

If state law discriminates against out-of-staters, strong presumption that law is unconstitutional and it will be upheld only if necessary to achieve important interest.

If state law treats in-staters and out-of-staters alike, presumption is that law is constitutional, and can be rebutted only by showing that the burden imposed on such commerce is clearly excessive in relation to the putative local benefits (balancing test).

DCC is implicated by protectionist (discriminatory) state legislation. Three questions:

Does the state law facially discriminate against out-of-state commerce?

If not, does the state law discriminate against out-of-state commerce in its purpose or effect?

If the state law is nondiscriminatory either facially or in application, does it have a disproportionate adverse effect on interstate commerce? (balance law’s burdens on interstate commerce against its benefits).

State holds burden to show no other way to regulate legitimate purpose

Congressional-approval exception: Discriminatory state law will be upheld if approved by Congress because Congress has plenary power to regulate commerce among the states.

Market-participant exception: State law may favor its own citizens when dealing with government-owned businesses and receiving government benefits. If state is market participant, rather than regulator, DCC does not apply.

Limitation: State may favor in-state purchasers, but may not attach conditions on sale of those goods AFTER they come to rest in private hands.